Gay v. State, 4 Div. 80

• Decision Date: 23 February 1990
• Docket Number: 4 Div. 80
• Citation: 562 So.2d 283
• Parties: Phillip GAY, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 283

562 So.2d 283

Phillip GAY, alias v. STATE.

4 Div. 80.

Court of Criminal Appeals of Alabama.

Feb. 23, 1990.

Rehearing Denied March 30, 1990.

Richard Waldrop, Enterprise, for appellant.

Don Siegelman, Atty. Gen., and Andrew J. Segal, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Phillip Gay was charged in two counts with robbery in the first degree, in violation of § 13A-8-41, Code of Alabama 1975. A jury found the appellant "guilty of count one" and "not guilty of count two" of the indictment. The trial judge sentenced the appellant to life imprisonment without possibility of parole as a habitual felony offender.

On September 26, 1986, Jimmy Culverhouse was working at the Park Avenue Package Store in Enterprise, Alabama. Two black males entered the store. One of the men approached the counter. He gave Culverhouse some money to purchase an item. When Culverhouse turned to open the cash register, the other man approached Culverhouse from behind and placed a knife to his throat. He ordered Culverhouse to get on the floor. The two men then emptied the contents from the cash register and fled.

Several days later, Culverhouse was shown a photographic line-up. He selected the appellant's photograph as being one of the men who robbed him. Culverhouse testified, when asked if he saw the alleged robber in the courtroom, that the appellant "looked like" one of them. The jury returned a verdict of not guilty as to this robbery.

On October 3, 1986, the Morgan Square Package Store in Enterprise, Alabama, was robbed. The modus operandi was very similar to the Park Avenue robbery. Two black males entered the store. After all of the customers had left, one of the men approached the counter and asked the clerk, Ed Ealey, about the prices to certain miscellaneous items, while the other perpetrator stood on the far side of the store. The male at the counter picked up a package of gum and paid Ealey. As Ealey turned to put the money in the cash register, the other robber came around the counter and placed a knife to Ealey's throat and ordered Ealey to get on the floor.

Ealey was later shown two photographic line-ups. He picked one individual out of both line-ups as being one of the robbers. He also identified this person, in court, as being the appellant. He picked a second individual out of the latter of the two line-ups. This person was identified to him to be Willie "Jap" Jackson.

During trial, Ealey testified that Jackson was the one who came to the counter to buy gum. The appellant was the robber who came around behind the counter, placed the knife to his throat and ordered him to get on the floor.

Ealey stated that the two men emptied the cash register and took his wallet. An inventory of the cash register revealed that $572 in United States currency was taken. His wallet contained approximately $600 in United States currency and various credit cards.

As the robbers were exiting the store, a couple pulled up in the front of the store and parked their car. Felicia Smith and Frederick Reed both identified this appellant as being one of the men who exited the store. They both noted that the only difference was that the appellant had a beard at the time of the robbery.

Cindy Dunaway, a detective with the Enterprise Police Department, investigated the robbery. When she arrived at the scene, she lifted several latent prints from the cash register and counter area.

These latent prints were sent to Carol Curly, with the Department of Public Safety, Alabama Bureau of Investigation, Latent Print Unit. Curly examined the latents and made two positive identifications. She compared the latents with the appellant's fingerprints and made a twelve-point match, nine points being the minimal standard.

I

The appellant contends that the trial judge's failure to grant a continuance so that he could make available two key witnesses violated his Sixth Amendment right to present witnesses in his favor. U.S. Const. amend VI.

On December 16, 1987, the appellant's counsel filed a motion to continue, seeking additional time to prepare for trial. The trial judge granted the motion and set the trial for February 8, 1988. The trial had previously been set for February 1, 1988.

On January 12, 1988, the appellant filed a motion to have the trial judge correspond with the Cook County, Illinois, court to have two witnesses, Sheryl Wilheit and Gary Watson, subpoenaed and ordered to appear in the Coffee County Circuit Court on the date of trial. Ala.Code § 12-21-180 et seq. (1975). According to the appellant, these two witnesses could testify that the appellant was in Chicago, Illinois, at the time of both robberies. The trial judge granted this motion on January 20, 1988, declaring both to be "material witnesses for the defense." (R. 31-32.) Furthermore, the trial judge approved State funds to insure the attendance of the two witnesses.

On February 2, 1988, the district attorney's office filed a notice of compliance, informing the trial judge that two checks, totalling $334.20 each, were sent to Cook County, Illinois. The witnesses were to appear before the Cook County judge on February 4, 1988, to receive those funds.

On Monday, February 8, 1988, the trial was set to begin. The appellant's counsel informed the trial judge that the two witnesses from Chicago were not present. He asked that the two witnesses be made available before starting the trial. The district attorney urged the trial judge to allow the trial to proceed, stating that Wilheit had been tendered the funds on Friday, February 5, 1988. The trial judge agreed with the district attorney and informed both parties that he would reconsider the motion at the close of the State's evidence.

At the beginning of the second day of trial (Tuesday, February 9), the appellant's counsel informed the trial judge that the appellant spoke with Wilheit the previous evening. According to the appellant, Wilheit went to Troy, Alabama, by mistake, on Saturday, February 6, 1988. She then returned to Chicago, but told the appellant that she would be returning to Alabama the following day. The trial judge agreed to take the motion under advisement stating that they would continue with the trial to the extent possible, but most likely he would grant a one-day continuance. In this regard, the trial judge stated: "When a man's freedom for life is at stake, one day won't make that much different. If I'm assured that that witness is on the way, headed down here (sic)." (R. 8 Supp.)

The State then continued with its case. One of the witnesses who testified for the State was Amelia Granberry. She testified that she worked with the appellant in 1983 and 1984. She said that the appellant kept some of his items in her apartment after his trailer burned down. According to the witness, the appellant moved his belongings out of her apartment in August of 1986. She said she saw him on a couple of occasions after he moved out. She recalls talking to the appellant on Labor Day in September of 1986 and on October 6, 1986. On the latter date, she showed the appellant two composites of the robbery suspects, which appeared in the local newspaper. She asked the appellant if one of the composites was of him. He stated that it was not.

After Granberry testified, the State rested its case. At this time, the appellant advised the trial judge that the appellant's sister was served with a subpoena in Tuscaloosa, Alabama, but failed to appear for trial. The appellant's counsel also stated that a subpoena was issued for the appellant's mother, but she was not served because of a mistake in the address. The appellant's counsel stated, however, that he spoke with the appellant's mother by telephone. She told him that she could not come to the trial because she had to work. Furthermore, the appellant reminded the trial judge that Wilheit had not yet arrived from Chicago.

At the conclusion of his discussion, the time was 11:30 a.m. on Tuesday, February 9, 1988. The trial judge granted a continuance until 9:30 a.m. the next morning, so that the attendance of all necessary witnesses could be ascertained. That evening, a Coffee County Sheriff's unit was sent to Tuscaloosa, Alabama. The appellant's mother and sister were picked up and transported back to Enterprise.

The next morning, the appellant's counsel informed the trial judge that Watson had called him from Chicago and stated that he went to the Cook County, Illinois, courthouse to get his check. According to Watson, the sheriff's department would not let him enter the building because he was intoxicated. The district attorney responded that the witness was ordered to appear in court on February 4, 1988, but failed to do so.

At this juncture of the proceedings, the trial judge stated that he had "bent over backwards" to make sure all of the defense witnesses were made available, including sending the sheriff to Tuscaloosa and granting a one-week continuance to subpoena the two witnesses in Chicago. (R. 154.) He informed the appellant to present those witnesses who were available. The trial judge stated that he would reconsider the request to continue the trial further at the conclusion of his witnesses' testimony.

At the State's request, the appellant then made a proffer of evidence to show the materiality of these witnesses' testimony. The appellant, through counsel, stated that he lived with Watson during September and October of 1986. He saw Wilheit socially during this same period of time. According to the appellant, both of these witnesses could substantiate his claim that he was not in Alabama during the time of the two robberies in Enterprise. The appellant also told the judge that his mother and sister would testify that, to their knowledge, the appellant was in Chicago during this time.

The trial judge again reiterated his numerous efforts to comply with the appellant's request to make various witnesses available. He also noted skepticism in the...